Volume 48 — Wisconsin Reports

The following statement of the case is taken, in substance, from.the opinion of Mr. Justice Taylob: “ Plaintiffs sued defendant in an action upon contract. At the commencement of the suit, they filed a proper affidavit, and caused an attachment to issue against the property of the defendant, upon which his property was attached. Defendant traversed the affidavit upon which the attachment was issued, and filed his answer to the complaint in the action.

Action on a policy of insurance against fire. By direction of the court, defendant had a verdict; and plaintiff appealed from the judgment.

<p>Paetitxon. (1) When partition sale should be vacated. (2) Appeal in partition: Practice: Parties: Waiver.</p> <p>1. A. sale was made in partition in the absence of many of the parties in interest, and other persons, who were kept away by a reasonable expectation that the proceedings would be stayed; and it was for a very inadequate .price, much less than one of such absent parties would have bid, and little more than half what the purchaser bid a few days before, when his offer was not accepted by reason of a stay; and the proceedings were conducted hastily, with knowledge that an appeal had been taken, and that a further stay pending the appeal would soon be made. Held, that the court erred in refusing to vacate the sale.</p> <p>2. Parties to a partition suit, whether made plaintiffs or defendants thereto, may appeal from an order by which they are aggrieved, and make the other parties to the suit, whether plaintiffs or defendants, respondents to the appeal; and any irregularity in respect to parties in such appeal, is waived by the appearance of the respondents by attorney at the hearing, without motion to dismiss for such irregularity.</p>

The action below was on a poliey of insurance against loss by fire, issued by the defendant company to the plaintiff Gal-latin, on his dwelling-house in the city of Oshkosh, and household furniture and wearing apparel therein. In case of loss, a portion of the insurance money was payable to the plaintiff Kuettle by the terms of the policy. The property was destroyed by fire during the term for which the policy was issued.

Aetion for rent; tried by the court without a jury. The findings of the court bearing upon the character of the tenancy are recited in the opinion. There was a further finding that' there was due from defendant to plaintiff $49.50, as rent of the premises for the months of April, May and June, 1877, payment of which had been refused; and from a judgment in plaintiff’s favor for that sum, defendant appealed.

The case is thus stated by Mr. Justice Taylob: “The plaintiff, as sheriff of Winnebago county, appointed Stephen W. Eace one of his deputies, and took from him a bond, with Shafer and W. W. Race, the appellants, as his sureties.

This court having reversed a judgment recovered by the plaintiff against the defendants in this action, and awarded costs to defendants (43 Wis., 467), the circuit court, after the cause was remitted, made an. order, on defendants’ motion, staying proceedings in the action on plaintiff’s part until such costs should be paid.' Plaintiff appealed from the order. For the appellant it was contended, 1. That the order was appealable.

Ejectment. Tbe defendant appealed from a judgment in plaintiff’s favor. Held: That the boundary between the north and south halves of said northwest quarter section is the straight line connecting the two sixteenth posts fixed in the manner described above in italics. 2.

Action to recover damages for the alleged unlawful conversion by the defendant city of certain personal property of the plaintiff. The facts, as they appear from the pleadings, evidence and findings of the judge, are briefly as follows: The annual tax list of the city of Menasha for 1875 was duly made.

The case is thus stated by Mr. Justice Taylor: “ The evidence in this case shows that the plaintiff and defendant both indorsed anote of James Semple (brother of the defendant), bearing date May 29, 1874, for the sum of $1,500, payable to Joseph Kirkland or bearer, at the First Rational Pank of Oshkosh, four months after date, with interest at the rate of 10 per cent, per annum; and that at the time the note became due it was owned and held by one Joseph Klockner.

<p> Taxation of Insurance Companies —Implied repeal of statutes. </p> <p>The general law regulating the payment by insurance companies doing business in any city or village of this state, of a tax' consisting of two per cent, of their premiums (ch. 56 of 1870, amended by ch. 299 of 1873), . operated to repeal all special provisions of city and village charters on that subject.</p>

The cause is thus stated by Mr. Justice Taylor: “ This action was commenced to recover of the defendant the value of a quantity of lumber sold by the plaintiff to him, and used by him in the erection of a store building on the lots described in the complaint, situate in the village of Calvary, in Pond du Lac county, and to have the amount of the value of such lumber declared a lien upon the store and lots therein described.

Action for a sum of money alleged to have been collected by defendant upon a promissory note belonging to plaintiff, and converted by defendant to his own use.

This action was brought in the name of the county judge of Kewaunee county, upon the general administration bond executed by three of the defendants as administrators of the estate of David Youngs, deceased, and by the other defendants as sureties. The answer was a general denial.

The case is thus stated by Mr. Justice Tayloe: “ This is an action to recover for the balance due the appellants [plaintiffs] on account for goods sold and delivered by them to the respondent. “ The evidence on the part of the appellants showed that they were wholesale grocers in the city of Milwaukee, and the respondent a merchant of Ahnapee, in the county of Kewau-nee, and that, at the request of one Yader, a commission man in the city of Milwaukee, with whom the…

On the 15th of October, 1875, plaintiff, as administratrix of Lemuel P. Nichols, deceased, executed a lease to the defendant Palmer of certain lands belonging to said estate, for a term of three years from said date, at an annual rental of $225, of which $50 were to be paid in improvements, and the remainder in two cash installments each yeai\ The first cash installment was to be paid November 10, 1875; the second October 16, 1876; and others on corresponding days of the…

The relator, the sheriff of Manitowoc county, presented for allowance certain accounts against said county to the board of supervisors thereof, at the annual session of the board in 1877. The board allowed the same at their face on the 15th of November in that year. During the same month, the county clerk, without any direction from the board, issued county orders to the relator for the amount thus allowed, and the county treasurer paid such orders.

Action to quiet title to land. Plaintiff appealed from the judgment.

Plaintiff is the owner of certain lots in the city of Fort Howard, on which are located his dwelling and brewery, and whose easterly front is on Pearl street.

I. In October, 1869, Charles Eul and his wife, Mary Ann Eul, executed a mortgage of laud to Matthew Martin, to secure a note of even date given by said Charles to Martin, for $600, payable in three years, with interest at ten per cent. The mortgage contained a provision' for paying a solicitor’s fee of $50 in case of a foreclosure; and it was immediately rer corded.

Eoreclosure of a mortgage of a quarter section of farming land, executed by Patrióle Garey and wife to secure payment of $4,300, with interest payable semi-annually. When the judgment was rendered, March 15, 1879, there was due interest amounting to $594; but the principal was not to become due until April 1, 1880. There was no appearance before judgment, on the part of any defendant.

This was a proceeding in garnishment, the principal suit being against E. McNutt and J. B., Wr. G-. and H. C. Killips, constituting the firm of McNutt & Killips. The facts found by the circuit court were as follows: In August, 1878, J. B., H. C. & W. G-. Killips were partners under the name of Kil-lips & Sons, and, as such, owners of a mill and machinery in Winneconne.

Action to recover the price of an “ Armstrong heater,” sold by the plaintiffs to the defendant. Held: in substance, that the agreement “ to project sale from infringements on other heaters” was only an undertaking to indemnify the defendant against loss in case the heater was an infringement upon some patent; and that, if it was such an infringement, inasmuch as he had lost nothing thereby, he had no defense to the action.

Action to foreclose a mortgage on lands in Kewaunee county, executed by David Youngs and Charles L. Fellows to Moses Miller, August 26, 1857, to secure the payment of a promissory note of even date therewith, made by the mortgagors to the mortgagee or bearer, for $500, and 12 per cent, interest, payable eighteen months after date.

Ejectment. Defendant appealed from a judgment in favor of the plaintiff. The case is sufficiently stated in the opinion. 1. Both the deed under which plaintiff claims, and that under which defendant claims, refer to the village plat of Clark’s Mills; and defendant’s deed was duly recorded several years before plaintiff’s was executed.

Replevin, for a buggy. The cause was tried by the court without a jury, and the facts found were substantially as follows: Plaintiff, a blacksmith, in the summer of 1875, owned a building, and occupied a part of tbe first story as a blacksmith-shop; while another part of that story was occupied by Schweitzer & Co. as a wagon-maker’s shop, and the second story over the plaintiff’s shop was occupied as a paint-shop by one Maxwell.

Action to recover damages for the alleged wrongful, fraudulent and forcible taking of a horse by the defendant from the possession of the plaintiff. Answer: first, a general denial; second, that the defendant purchased the horse of the plaintiff, and that the plaintiff delivered the horse to him pursuant to the contract of purchase.

Ejectment, commenced September 24, 1875, for the southwest quarter of the southwest quarter of section 10, town 19, range 15, in said county. Held: That the deed from Cown to Lasley was invalid as to the homestead, and did not acquire validity in that respect by the subsequent acts of Cown in removing from the land and acquiring a homestead elsewhere, before mating the Kent mortgage. 2.

Court for Boole County. Action for inj uries to the plaintiff resulting from the unsafe condition of a sidewalk in the city of Janesville. The owners of the lot upon which the walk is constructed, were made defendants together with the city; and from a judgment, upon verdict, in favor of the plaintiff, said lot-owners appealed. The case is stated in the opinion.

<p>Obkiinal Law and Practice: Evidence: Court and Jury. (1) Refusal of defendants testimony as to conversations, after admitting that against her. (2) When words spoken admissible as parts of the res geste. (3) Defendant’s right to show facts to repel unfavorable inferences arising from other facts shown by the state. (4) Admission, in prosecution for murder, of defendant's testimony before coroner’s jury. (5) Credibility of witness; court and jury.</p> <p>1. Where, on trial of an information for mnrcler, acts and conversations between the accused and the deceased, which occurred a short time before the death, were admitted in evidence on behalf of the state, and were both material as tending to show the state of mind of the accused toward the deceased, it was error to reject evidence for the defense as to the same conversations; and, the accused being, by the law of this state, a competent witness in her own behalf, it was error to reject her testimony as to such conversations; and the fact.that there was other testimony by and for the accused to the point that after such acts and conversations the parties had been reconciled and their relations were apparently pleasant, does not relieve the error. ■</p> <p>2. When the acts of a party are admissible in evidence, what was said at the time of doing the acts, being a part of the transaction, explaining and characterizing it, and deriving credit from it, is also admissible as part of the res gestee; and under the circumstances of this case (for which see the opinion), after the state had properly put in evidence the acts of the parties a short time before the death, the defense would have been entitled to show the conversation between them occurring at the same time, even if the state had not introduced evidence of such conversation.</p> <p>3. The state introduced evidence to show (as a motive for the murder) that the accused, being the wife of the deceased, had a criminal intimacy with one X, who was in the employ of the deceased; and such evidence tended to show that X had been discharged by the deceased, and, after being reemployed, had again been discharged by him after one day’s service. Held, that it was error to reject evidence for the defense to show why X left such employment, offered to repel the inferences unfavorable to the accused sought to be derived from the state’s evidence.</p> <p>4. There was no error in permitting the state to put in evidence the testimony of the accused, given at the coroner’s inquest, before the arrest.</p> <p>5. The credibility of a witness is a question for the jury, under proper instructions and cautions from the court, notwithstanding he may have made contradictory statements under oath, or be an accomplice of the accused.</p>

<p>ERROR to the Circuit Court for Rode, County.</p>

The circuit court reversed an order of the county court of said county, admitting to probate the will of Sarah M. Blakely. Prom the judgment of the circuit court, this appeal was taken by David Blakely, contestant of the will.

Plaintiff appealed from a judgment of the circuit court disallowing his claim against the estate of defendant’s intestate, for labor performed for the deceased. The case is stated in the opinion.

Action by Fritz Fide to recover possession of personal property. There was a special verdict, which is stated in tbe opinion. Tbe court denied plaintiff’s motion to set aside tbe verdict, and rendered judgment thereon in defendant’s favor; from which tbe plaintiff appealed.

APPEAL .from the Circuit Court for Manitowoc County. Defendant appealed from a judgment in plaintiff’s favor for $100 damages, alleged to be due plaintiff for his labor and services as niglit-watchman in the defendant city, from February 1 to May 1, 1876.

<p>APPEAL from the Municipal Court of the City and Town of Rif on.</p> <p>The case is stated in the opinion.</p>

The substance of the complaint in this action is thus stated by Mr. Justice Cole: “ The action is brought to recover the penalty given by section 32, eh. 158, Tay.

Action to recover damages accruing to the plaintiff by reason of injuries to liis wife caused by the defective condition of a public highway in the defendant city. The case is thus stated in part by Mr. Justice TayloR: ‘‘Some time in July, 1875, Elizabeth Meese, wife of the plaintiff in this action, was severely injured by being thrown from a buggy in which she was riding across one of the bridges in the city of Fond du Lac.

Defendant appealed from a judgment reforming bis deed of conveyance. 'Tbe case will sufficiently appear from the opinion. 1. The plaintiff, a remote grantee of John Sable, is neither party nor privy to tbe deed sought to be reformed, and cannot maintain this action. Cady v. Potter, 55 Barb., 463; Story’s Eq. Jur., §165. 2. Prompt action is required of him who would relieve himself from a mistake, especially in tbe execution of formal instruments in writing under seal.

Action for injuries received by plaintiff November 27, 1875, while traveling along a highway in the defendant town, and alleged to have been caused by the defective condition of the highway.

The case is thus stated by Mr. Justice Tatloe: “ This action was brought by the plaintiffs to recover tbe value of a reaper which they allege the defendant purchased of them, and for which he agreed to pay the sum of $145.

The defendant as sheriff levied upon certain goods and chattels *by virtue of executions against the property of one Wetzel, in whose possession the' goods were found.

This is a proceeding against..the appellant, Lonsdale, as for a contempt, to enforce a civil remedy. The alleged contempt consisted in the refusal of Lonsdale to answer certain interrogatories propounded to him when giving his deposition as a witness before a court commissioner of Milwaukee county, in an action pending in the circuit court for Fond du Lac county, in which the relators are plaintiffs and one Lewis'E. Reed is defendant.

Replevin. Answer, that the defendant took the goods as constable, under an execution in favor of one O. L. Ingersoll against the property of one Harry M. Bean; that the goods belonged in fact to said execution defendant; and that the pretended bill of sale from him to the plaintiff, John Bean, was fraudulent and void as to creditors. The evidence introduced by defendant is sufficiently stated in the opinion. The plaintiff had a verdict and judgment; and defendant appealed.

This case was here on a former appeal, and the statement of it, which will be found in 40 Wis., 589, will not be repeated here. On that appeal a judgment for the plaintiff was reversed because the question whether he was in the service of the defendant company when injured, or of John Lawler, was not submitted to the jury.

The judgment of the circuit court in this cause was reversed at the January term, 1879, of this court, and the cause remanded for further proceedings. 46 Wis., 644. Afterwards the respondents appealed from the taxation of costs in this court.

On the 21st of April, 1875,- the plaintiffs, Fra7ik L. Jones, administrator of the estate of George J. Pumpelly, deceased, James F. Pumpelly and Fdwm G. Gray, filed in the office of the clerk of said circuit court a petition, duly verified, addressed to the lion.

Action to recover damages for the alleged unlawful taking and conversion by the defendant of thirty-seven barrels of beer of the value of $167, and three hundred and thirty pounds' of hops of the value of $33.

Action on a policy of insurance on certain buildings, and machinery and fixtures therein, in Winneconne. On the trial, the court nonsuited the plaintiff.

Replevin. Defendant appealed from an order setting aside an order, previously made on his motion, dismissing the action and directing an assessment by a jury of the value of the property taken by the writ. The case is more fully stated in the opinion.

The case is thus stated by Mr. Justice Tayloe: “ The defendants gave one IT. G. Sampson their non-negotiable promissory note for the sum of $275, dated on or about the first of January, 1878, and payable six months after date. On the tenth of January, 1878, Sampson delivered the note to the plaintiff, Pier, as collateral security for the payment of his note of $200, given to said Pier on that day, and payable three months after date.

Action to recover $300 alleged to have been paid to the defendant by one William Bergenthal,- the agent of the plaintiff, for the plaintiff, through a mistake of fact arising from a misrepresentation of the defendant. ■ The complaint alleges that in 1875 the plaintiff was in Europe, and William Bergenthal, his brother, had in his absence the general charge and management of his business in Milwaukee; that the defendant stated and represented to William, while so acting for…

The action is to reform a mortgage. The facts found by the circuit court, so far as it is necessary to state them, are as follows: In .1875, one Peter Petesch was the owner of lots A and B in a certain block in the village of Random Lake. Lot A was his homestead, on which he and his wife resided.

The action was commenced by the plaintiff’s testator, Olonzo Carson, upon a joint and several promissory note made to him by the defendants. The complaint appears to be in the usual form, and is duly verified. The defendants interposed a general demurrer thereto. Pending the demurrer, Carson, the original plaintiff, died.

APPEAR from the Circuit Court for Crawford County. Plaintiff appealed from a judgment in defendant’s favor. The case is stated in the opinion.

One Wells brought bis action on contract against one Williams, before Charles E. Stehl, Esq., a justice of the peace. Wells presented to the officer having the summons for service, an affidavit that “ John Allen da Bros.” were indebted to Williams, and demanded that they be summoned as garnishees.

This action was brought against Thomas H. Maynard, J. Lester Adams and W. Thompson Adams, on a promissory note executed by them in the following form: “ Apple Rivee, 'III., Mat 5, 1870. Twelve months after date we promise to pay to the order of Samuel Irvine, five hundred dollars, at ten per cent, per annum, value received. “Maynard & Adams. UW.

Action for the strict foreclosure of a land contract. Defendant appealed from a judgment in plaintiff’s favor. The case is stated in the opinion. 1. The judgment should be reversed unless the demurrer was frivolous. This is the rule where a defense interposed by answer is stricken out as frivolous; and up to the case of Cobb v. Harrison, 20 Wis., 625, the same was held in case of a demurrer. Clapp v. Preston, 15 Wis., 543; Cahoon v. Wisconsin Cent.

<p>(1) Continuance. (2) New Trial, for newly discovered evidence. (3) Instructions to Jury: Erroneous when argumentative and partial.</p> <p>1. In a proceeding under the bastardy act, where defendant had continued the cause over one term of the circuit court, and, though he knew that a certain witness might be material, had taken no steps to summon him until a few days before that fixed for the trial, when the witness had left the state to avoid being summoned: Held, that there was no error in refusing a further continuance on account of the absence of such witness; especially where, if present, he could not have been compelled to testify to the facts which defendant expected to prove by him.</p> <p>2. There is no error in refusing defendant a new trial in such a case, on the ground of newly discovered evidence, where he had been informed three weeks before the trial that the witness from whom such evidence is expected, might be a material witness for him, and neither procured his attendance nor asked a continuance to enable him to procure it.</p> <p>3. The evidence in this case, as to the paternity of the child, being of a conflicting character, and the questions of fact fairly disputable, and the charge of the court having presented the case on plaintiff’s part in a forcible argumentative way, without so stating it on defendant’s part, and having been expressed in terms from which the jury must have inferred the judge’s opinion to be that they should find against the defendant, the judgment against him is reversed, without considering whether a preponderance of evidence against the defendant in such a case is sufficient.</p>

Action against Niool Robertson, Elizabeth his wife, and B..E. McCoy, to foreclose a mortgage, and for a personal judgment against Niool… Held: as conclusions of law, that by said alteration the note became void; that the subsequent erasure did not restore its validity; that the alteration did not extinguish the original debt for which the note was given; that the mortgage is a security for the debt, and not merely for the note; and that plaintiff was entitled to a judgment…

The action was brought before Isaac Hoyes, Esq., a justice of the peace, and was regularly removed to Lyman Cowdery, Esq., another justice of the peace of the same county. A trial • was had before the latter justice, and resulted in a judgment for the plaintiff. The defendants thereupon removed the case to the circuit court by a common-law writ of certiorari.

The case is thus stated by Mr. Justice Taylob: “This action was commenced in a justice’s -court.

Action for injuries received by the plaintiff, a practicing physician, while traveling in a buggy at night along a street in the defendant city, in consequence of his buggy striking a log lying in the street, and his horses becoming frightened by the noise and shock, and running away.

Ejectment. Defendant claimed under a mortgage sale of tbe land made by one Davis as surviving executor of one Mooney, tbe mortgagee, by virtue of a power of sale contained in tbe mortgage. The evidence relied upon by the defendant. to show the right of Davis as such executor, will appear from the opinion. The circuit court held the evidence insufficient, and rendered judgment for the plaintiff; from which the defendant appealed.

The case is thus stated by Mr. Justice Tayloh: “This action was brought to recover damages on account of injuries alleged to have been sustained by the plaintiffs by reason of the negligence of the defendant in not keeping a sufficient platform at Glendale, in this state, a station on its road at which passengers were accustomed to get on and off its trains. “ The facts shown upon the trial were, that the defendant had constructed a platform at Glendale, about one hundred…

Ejectment, against George Baldwin and his wife, Orissa Baldwin, for forty acres of land alleged to have been the property of plaintiff’s intestate, Noah IT. Drew, at the time of his death, in 1873. The land had been inventoried as a part of the estate, and had been in the possession of the administrator until March 16,1878, when defendants took peaceable possession. Defendants claim to own the laud by virtue of a deed from said intestate to Orissa Baldwin.

<p>APPEAL from the Circuit Court for La Crosse County.</p> <p>After the former decision in this cause, reported in 45 Wis., 622-660, a rehearing was granted.</p>

Action on the official bond of the defendant Benedict as overseer of highways. Upon a special verdict,’ both parties moved for judgment. The material facts in regard to the verdict are stated in the opinion. Judgment was rendered for the plaintiff: and defendants appealed.

<p>FORECLOSURE oe Land Mortqaoe. (1) What statute governs the judgment. (2) Form of judgment under present statute. (8) Purchaser’s right to the possession.</p> <p>1. Judgment in foreclosure must conform to the statute then in force regulating the practice, or it will he reversed, at least where it does not clearly appear that the appellant will suffer no prejudice from the want of such conformity.</p> <p>2. Under the existing statutes of this state, personal judgment against the mortgagor for the whole amount of the mortgage debt, or even for the deficiency after a sale of the mortgaged property, cannot be rendered with the judgment of foreclosure; though that judgment may include an order (if demanded in the complaint) that a judgment for the deficiency be entered after such deficiency shall have been duly ascertained; and this can be done only after the sale is made and confirmed; and a judgment in violation of this rule must be reversed.</p> <p>3. The statutory provision (sec. 3169, R. 3.) that the purchaser at foreclosure sale shall be let into possession on production of the sheriff’s deed, must be construed as defining the rights of such purchaser after confirmation of the sate. Wcehler v. JSndter, 46 Wis., 301.</p>

This is an appeal by the defendants from an order overruling a demurrer to the relation, and a motion to quash an alternative writ of mandamus commanding the defendants to execute and issue to the relator the bonds of the town of Mukwa (of which town they are the chairman of the hoard of supervisors and town clerk respectively) in exchange for the stock of the relator, pursuant to a vote of the electors of said town.

Ejectment, to recover possession of a lot in the city of Pond du Lac. Complaint in the usual form. The defendants, Benson and Smith, answered separately, each claiming to he the owner in fee of an undivided one-half of the lot. A jury ha ring been waived, the cause was tried by the court. The plaintiff read in evidence various conveyances which he claims show title in him, derived from the United States.

The action was commenced in January, 1878, to restrain the collection of certain taxes assessed against the plaintiff, in 1877, on his lands in the defendant town, and to set aside the assessment and tax levy for that year. The complaint contains averments of fact showing that irregularities going to the groundwork of the tax, and affecting all the taxable property in the town, were committed in making the assessment in question.

Croix.Goxmty. ' Action to recover plaintiff’s charges for aiding the defendants in driving logs ont of the north fork of Clam river by means of dams constructed and maintained therein by the plaintiff.

Croix County. . Plaintiff is the owner of certain dams across Clam river, in Barron county, erected and maintained by him pursuant to authority conferred by chapter 154, Laws of 1874, as amended by chapter 233 of 1876. This action is to enforce a lien on a quantity of logs sluiced through such dams in 1876, for the tolls which the act authorizes the plaintiff to charge therefor.

Action on a promissory note alleged to have been executed by defendant to F. L-. Stevens or bearer, payable three months after date. The complaint avers that plaintiff is the lawful owner and holder of the note, and that default has been made thereon.

Defendant appealed from an order sustaining plaintiff’s demurrer to a counterclaim set up in the answer. The nature of tbe counterclaim, and the grounds of the demurrer, will sufficiently appear from the opinion.

Por the appellant it was argued, 1. That equity has concurrent jurisdiction with law in all matters of account, and especially where the remedy at law is inadequate or doubtful. Ludlow v. Simond, 2 Caines’ Cas., 1 (2 Am. Cas., 291 and notes); 1 Story’s Eq. Jur., § 458 and note 1, and §§468-4; Willard’s Eq., §§ 90-92, 104; Hawley v. Oramer, 4 Cow., 717, 726-7; Southgate v. Montgomery, 1 Paige, 41. This jui’isdiction is not affected by the code. 4 Sandf. Ch., 682.

Replevin, for a span of horses. The material facts are stated in the opinion. The j ury, by direction of the court, returned a verdict for the plaintiff; and, from a judgment thereon, defendant appealed. Por the appellant it was argued, that an infant may disaffirm and avoid his chattel mortgage at any time before he becomes of age, and within a reasonable time thereafter (Tyler on Inf., etc., p. 69, § 30; Sehouler on Dom.

The plaintiff was driving his team and wagon in a public highway crossing the railway track of the defendant company in Clark county, and, as he was crossing the track, collided with a passing train. He received severe personal inj uries, his horses were killed, and his wagon was broken by the collision. This action was to recover damages therefor.

<p> Reformation of deed. </p> <p>It appearing from tie evidence that plaintiff agreed to sell and convey lands to defendants subject to the rights of "W. and S., to whom plaintiff had sold all the pine timber on said land on condition that they should remove it within a specified time (which has not expired), and that the insertion of a clause to that effect in plaintiff’s warranty deed to defendant was omitted through mutual mistake and inadvertence, the deed should be so reformed as to show that the conveyance was subject to the rights of W. and S. under said contract; but it was error to reform it by inserting an absolute reservation to plaintiff of all the pine timber on the land at the date of the deed, without fixing any time within which it should be cut and removed by plaintiff or his assigns.</p>

<p>APPEAL from the Circuit Court for Portage County.</p> <p>Defendant appealed from a judgment in plaintiff’s favor.</p>

<p>Pleadiuq: Action held to be on contract: Nonsuit for nonjoinder of joint obligee.</p> <p>Complaint in justice's court, “ that defendants are indebted ” to plaintiff “in manner following: for a stove lent to defendants °.... of the value, etc., .... which defendants have never returned to plaintiff, and refused to return when demanded.” Held, an action ex contractu; and on proof (upon appeal to the circuit court) that the stove belonged to plaintiff and another person, as copartners, a nonsuit should have been granted.</p>

Carlton. The complaint, after alleging that the plaintiffs, being old and infirm, conveyed their homestead farm (describing it) to their said daughter, in April, 1875, in consideration that she should support and maintain them during their natural lives, proceeds as follows: “ And thereupon the said Eliza, for the purpose of securing to the plaintiffs the performance of the said agreement, on the said 13th day of April, 1875, made to the said Levi Bishop a lease of said…

<p> Reversal of judgment, for inaccurate instruction. </p> <p>A judgment will not be reversed merely because general terms were used in an instruction, which, might have been made more definite and certain, where the appellant did not call the judge’s attention to the point at the time, nor ask for more specific instructions (but merely took a general exception to the instruction), and the terms used, in view of the whole charge, could not mislead the jury.</p>

<p>APPEAL from tííe Circuit Court for Portage County.</p> <p>Plaintiffs appealed'from a judgment in defendant’s favor.</p>

Eeplevin, for lumber. On the 17th of June, 1878, Mo-Lean and the firm of Thompson & Co., of Stevens Point, entered into a written contract whose provisions are thus stated by Mr. Justice Cole: “The defendant sold Thompson & Co. all the merchantable pine standing on the land named, for a sum to be paid as specified. Thompson & Co. were to mark on the end of each log or stick of timber cut on the land a certain mark.

This action was brought against Mrs. Bandow and her husband to enforce a mechanic’s lien for the price of labor performed and materials furnished by the plaintiffs in the erection of a dwelling-house on a certain lot belonging to the wife. A trial of the action resulted in a personal judgment against the defendant husband for a certain sum, and the same was adjudged a lien upon the dwelling-house and lot of the wife.

The case is thus stated by Mr. Justice Tavloe: “This action was brought September 28, 1878, against Ketolmm as indorser, and Isaac Brown, A. J. Fulton and John W. Bishop, composing the firm of Brown, Fulton & Bishop, as makers, of a promissory note for $1,000, hearing date June 25,1877, payable 90 days after date to said Ketohum or his order, and duly indorsed by Ketohum and delivered to the plaintiff.

<p>APPEAL from the Circuit Court for Waupaca County.</p> <p>Defendant appealed from a judgment in favor of the plaintiff.</p>

The case is thus stated by Mr. Justice Tayloe: “ The plaintiff in error was tried in the circuit court of Rock county upon an information charging him with the larceny of goods from a shop, of the value of more than $100. The information also charged the larceny as a second offense, alleging the fact that he had been theretofore duly convicted and punished for a previous larceny committed by him. The plaintiff in error was convicted of the larceny charged in the information.

Plaintiff appealed from á judgment in defendant’s favor. The case is stated in the opinion. They contended, among other things, 1. That the writ of attachment was no protection to either the officer or the attachment plaintiff, where there was a failure to obtain jurisdiction of the attachment defendant. Hale v. Cummings, 3 Ala., 398; Lamb v. Felclen, 16 Ark., 541; Watts v. Willett, 2 Hilt., 212; Johnson v. Edson, 2 Aik.

About the year 1870, the plaintiff brought an action against the defendant board of supervisors and certain public officers to restrain… Held: “ That the plaintiff is not entitled in law to maintain this action; that the property described was duly assessed and taxed, and not exempt therefrom, in the year 1873; and that the plaintiff is barred of all right to maintain this action, and the defendants should have judgment accordingly, dismissing the plaintiff’s action on the…

<p>APPEAL from the Circuit Court for Columbia County.</p> <p>Defendant appealed from a judgment in plaintiff’s favor. The case is stated in the opinion.</p>

The case is stated in the opinion; but it may be further observed, 1. That one of the by-laws adopted by the board of directors at their meeting of February 17, 1872, was in these words: “ Sec. 21. Applications for insurance, or for any change in the policy of insurance, in all cases shall be passed upon and approved or rejected by at least two directors, whose names shall be indorsed thereon.” 2.

EBBOB to the Municipal Court of Milwaul&ee County. 'Mall, having been convicted upon a criminal information under sec. 4410, B. S., took a writ of error to reverse the judgment. cited Ford v. State, 3 Pin., 449; People v. Murray, 8 Cal., 619; Carpenter v. Mixon, 5 Hill, 260; Shay v. People, 22 H. Y., 317. contended that there was no need to allege the kind or value of the goods intended to be stolen. 2 Bishop’s Crim.

<p>APPEAL from the Circuit Court for Columbia County.</p> <p>The case is stated in the opinion.</p>

ON the 22d day of April, 1879, I. G. Sloan, Esq., moved the court for the admission of Miss Eavinia Gooclell to its .bar as a practicing attorney; and the court took time to consider the motion. Afterwards, on the 18th of June, 1879, the motion was granted, and the following opinion was filed.